Arrow Aviation, Inc. v. Moore

• Decision Date: 27 April 1959
• Docket Number: No. 16137.,16137.
• Citation: 266 F.2d 488
• Parties: ARROW AVIATION, INC., a Corporation, Appellant, v. Harry H. MOORE and Socony Mobil Oil Co., a Corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

266 F.2d 488 (1959)

ARROW AVIATION, INC., a Corporation, Appellant, v. Harry H. MOORE and Socony Mobil Oil Co., a Corporation, Appellees.

No. 16137.

United States Court of Appeals Eighth Circuit.

April 27, 1959.

Robert A. Barlow, Lincoln, Neb. (George Healey, Kenneth Cobb, Patrick W. Healey and Healey, Davies, Wilson & Barlow, Lincoln, Neb., were with him on the brief), for appellant.

C. Russell Mattson, Lincoln, Neb. (George L. Gordon and Carl A. Hummel, Kansas City, Mo., were with him on the brief), for appellee Harry H. Moore.

Before SANBORN, WOODROUGH, and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Defendant appeals from judgment for plaintiff for damages sustained as a result of the crash of defendant's airplane in which plaintiff was riding as a fare-paying passenger. Jurisdiction based upon diversity of citizenship is established.

Plaintiff in his complaint asserted that defendant is an air transportation common carrier; that plaintiff engaged defendant to transport him by air from Lincoln, Nebraska, to Kansas City, Missouri; that the flight was made in defendant's Model 140 Cessna airplane; that plaintiff's injuries were brought about by the crash of defendant's airplane on a road adjoining the Kansas City airport; and that the crash was proximately caused by the negligence of the defendant's pilot in the following particulars:

(a) The pilot failed to have the airplane under reasonable control;

(b) The pilot failed to keep a proper look-out;

(c) The pilot failed to reasonably apprise himself of the surface conditions and the wind and weather conditions as he approached said Airport;

(d) The pilot failed to land said airplane upon the runway of the Airport aforesaid;

(e) The pilot wrongfully landed said airplane upon a roadway adjacent to said Airport;

(f) The pilot wrongfully collided with the cyclone wire fence adjacent to said Airport;

(g) The pilot operated the airplane at too low an altitude for the wind, weather and surface conditions then existing, as he approached said Airport for his landing; and

(h) The pilot operated said airplane in such a manner as to have no regard for the safety, life or limb of his passenger, this plaintiff.

Defendant in its answer asserted that it was a private carrier, not a common carrier; denied all allegations as to negligence on the part of its pilot; and asserted that the accident was caused by an act of God, in that a sudden change in air currents occurred causing the plane to go out of control. A further defense to the effect that plaintiff chartered the plane and was in control thereof was also raised but was rejected by the trial court, and the defense is not asserted on this appeal.

The case was tried to a jury. The jury found for the plaintiff. The court overruled defendant's motion for a directed verdict made at the close of all the evidence and defendant's post-trial motion for judgment n. o. v. and entered judgment for the plaintiff in accordance with the verdict. Defendant asserts the court erred in denying its motion for a directed verdict, and that the court also erred in certain of its instructions.

We shall first consider defendant's contention that it was entitled to a directed verdict.

The court submitted to the jury for determination the question of whether the defendant is a common carrier or a private carrier. Whether an air carrier is a common carrier is determined by the same principles as are applied in the cases of carriers by other means. 6 Am.Jur. Aviation § 45; Annotation, 99 A.L.R. 173, 188. A carrier is a common carrier if it holds itself out to the public as willing to carry all passengers for hire indiscriminately. The holding out may be either by advertising or by actually engaging in the business of carriage for hire. See 13 C.J.S. Carriers § 530; 6 Am.Jur. Aviation § 47; Alaska Air Transport, Inc. v. Alaska Airplane Charter Co., D.C.Alaska, 72 F.Supp. 609; Meyer v. Rozran, 333 Ill. App. 301, 77 N.E.2d 454; Stoner v. Underseth, 85 Mont. 11, 277 P. 437.

The transportation contract here involved was made in Nebraska. In State ex rel. State Railway Commission v. Ramsey, 151 Neb. 333, 37 N.W.2d 502, 506, the court states:

"* * * A statute of this state defines common carriers as any corporation or other carrier engaged in the transmission of messages or transportation of passengers or freight for hire. S. 75-301, R.S. 1943. Common carriers by air are indistinguishable from other common carriers with respect to the policy of the law. Any person or organization engaged in transportation by air for hire is a common carrier."

There is ample evidence to support a jury finding that defendant is a common carrier. Defendant advertised in the Lincoln Telephone Directory that it provided nationwide air taxi service. Plaintiff called defendant in response to such advertisement and was furnished the air transportation here involved. Defendant was licensed by the Department of Commerce to carry on air taxi service. Defendant in its report of the accident to the Civil Aeronautics Board reported the flight was an air taxi flight.

A common carrier by air is not an insurer of the safety of its passengers. Liability is based upon negligence. A common carrier by air must exercise the highest degree of care consistent with the practical operation of its plane for the safety of the passengers. Urban v. Frontier Air Lines, D.C.Wyo., 139 F. Supp. 288; Smith v. O'Donnell, 215 Cal. 714, 12 P.2d 933; Lundsford v. Tucson Aviation Corp., 73 Ariz. 277, 240 P.2d 545; 6 Am.Jur. Aviation § 51.

We now summarize the pertinent facts, bearing in mind that the evidence upon this appeal must be viewed in the light most favorable to the plaintiff.

The accident causing plaintiff's injuries occurred when the plane was attempting to land at the Kansas City, Missouri, airport. Torgeson, defendant's pilot, had considerable flight experience, but had never previously flown to the Kansas City airport and was not familiar with the ground lay-out there. Nothing unusual occurred on the flight from Lincoln, although rain squalls were encountered. The initial landing approach was from the north with the intention of landing on runway 18. When the plane got to within 50 feet of the runway, the pilot received a wave-off from the control tower and was told to come in on runway 21. The pilot flew the plane south across the airport, turned to the left, and approached runway 21 from the southwest in a normal manner. The wind at that time was south-southwesterly at 16 knots with gusts up to 24 knots. Visibility was good. The pilot testified that he knew the air was turbulent and that he had taken such turbulence into account and was making a power-on approach, flying to the runway at an air speed of 80 to 100 miles per hour, rather than gliding to a landing, as the power-on approach gives the pilot better control in turbulent air. He planned to land the plane in the first 200 feet of the runway. Runway 21 is 4800 to 5200 feet long. Not much room is needed to land the type of plane here involved. The pilot testified:

"* * * To my way of thinking the approach under normal circumstances would have been all right. Then as we — just before we passed what I later learned was the railroad tracks, why we hit this down draft and just a second later we bounced off the road and through the fence and that was it."

Just before the crash the plane was at a height of about 40 feet above the tracks. The accident report signed by the pilot and defendant's president under "Pilot's Description of Accident" states in part:

"My conclusion is that the approach was too low for the wind and surface conditions, both of which I was not aware of. The airplane was caught in a strong down draft on the lee side of the dike and after passing just over the R. R. track experienced a high speed stall due to the up draft on the windward side of the dike. It is possible, too, that a strong gust could have subsided at this instant leaving the airplane completely stalled."

Upon cross-examination the pilot admitted that if he had planned to land about midway on the runway he would have experienced no trouble at all in landing. The pilot also testified that in a conversation with his employer's president about a week after the accident he was told that he should have come in higher, which fact the pilot said he already knew. The pilot also stated that his compensation for the flight was on the basis of $3 an hour, that he had not been paid for the trip, and that he had not asked for his compensation because of the accident.

The airport to the west of runway 21 is enclosed by a fence. Just west of the fence is the road upon which the plane crashed, and beyond that is a series of railroad tracks located upon a dike about 20 feet high. To the west of the tracks are grain elevators and other buildings.

Defendant takes the position that the wind condition which caused the crash was an act of God. In Cudney v. Braniff Airways, Inc., Mo., 300 S.W.2d 412, the Supreme Court of Missouri recognizes that a plane may drop in turbulent weather under circumstances where no negligence on the part of the pilot exists. The court then states (at page 417 of 300 S.W.2d):

"* * * But where science does afford or comes to afford a forewarning of a weather condition attended by the probability or reasonable likelihood of a hazard of dangerous turbulence, it would be too much to say that the airline need not anticipate and take the commensurate precautions reasonably available to guard against the hazard; and where the means or precautions, in given circumstances, of avoiding the hazard of dangerous turbulence are known or are pointed out in the evidence to have been available, as in our case, the failure to take such specific commensurate precaution or precautions, in our opinion, constitutes negligence. * * *"

The court then quotes with approval from Small v. Transcontinental & Western Air, 96 Cal.App.2d 408...